Norfleet v. Cromwell

Rodman, J.

Two questions are raised by the demurrer:

I. Can the plaintiffs recover without an ayerment that the. defendant had notice that the plaintiffs had repaired the-canal, and of the amount of his liability ? We think not.. The rule on this subject is well stated in 1 Chit. PL 360: “When the matter alleged in the pleading is to be considered as more properly lying in the knowledge of the plaintiff than of the defendant, then the declaration ought to state that the defendant had notice thereof; as where the defendant promised to give the plaintiff as much for a commodity as another person had given or should give him for the like; or to pay the plaintiff what damages he had sustained by a battery; or to pay the plaintiff his costs of suit. But where the matter does not lie more properly in the knowledge of ■the plaintiff than of the defendant, notice need not be averred.” The rule is copiously exemplified in Com. Dig. Condition L. 8; and another illustration may be found in the case where one of several co-sureties pays the debt, he cannot recover of another co-surety without notice of such payment: Sikes v. Quick, 7 Jon. 19. The omission of an averment of notice when necessary (though it will sometimes he» cured by verdict) will he fatal on demurrer, or after judgment, by default: 1 Chit. Pl. 362. In this case, although it might b& presumed that the defendant had notice that some work was' done on the canal, yet he cannot he presumed to know by which of the contracting parties it was done, or its cost; and, consequently, the extent of his liability. Those were-matters peculiarly within the knowledge of the plaintiffs. But it is urged that the disclaimer by the defendant of any liability under the covenant, before the work was done, dispensed with notice afterwards. The fact relied on as dispensing with notice is properly set forth in the complaint, and the question is as to its sufficiency. We think it is not sufficient. Notice is dispensed with where the party absconds ; Yiner’s Abridg. Notice, A. 2; and in some cases-notice of the dishonor of a bill of exchange is dispensed with; Byles on Bills, 219 ; hut none of the examples given seems-analogous to this.. What is it that the defendant is entitled to have notice of, and for what purpose ? Of his liability* and of the amount of it, in order that he may have the choice: of paying without suit. The defendant in this case had notice of the covenant; but that created only a contingent liability, which could only become absolute by some act to be done by the other parties, or some of them. Before such act, the plaintiff had no right of action, and the defendant, could not pay; and it was of this act, therefore, that the-defendant was entitled to notice. It was the contingent, liability which the defendant disclaimed, and we think he was-entitled to notice after it had become an actual and definite cause of action. Upon this point, therefore, the demurrer must be sustained.

II. As this disposes of the present action, we might decline to go further, and to express any opinion upon the question which would have been raised by the demurrer, if the complaint had contained an averment of notice. But as it is one. of much interest and importance, especially in the eastern part of the State, where contracts of this sort have been common, and as we have formed a decided opinion upon it, we see no good reason why it should not be stated now, rather than deferred until this case shall again come before us with a proper averment, as from its importance we may infer that it would.

This question is, whether the burden of the covenant by Lloyd to contribute to the repair of the canal, runs with the land, and binds the defendant as his assignee. The contract between the parties to the deed of July 1858, is in the form of mutual covenants, and is, in substance, that a certain canal (then existing) shall continue to run through certain lands of the parties, for their benefit respectively, and that each and his assigns, being the owners of the described lands, shall contribute in certain proportions to its repair. We think it clear that one effect of the contract, was to grant to ■each of the parties an easement in fee, appurtenant to their several described pieces of land, and passing both as a benefit and as a burden to subsequent assignees. The lands of each became both servient and dominant to the lands of the others, for certain purposes. The easement of the upper proprietor, was the right to the free flow of the water from his land through the canal; that of the lower one, was not only the right to drain the water from his land through the canal, but also, that the upper proprietors should permit the water from their lands to flow through the canal, to answer in its corase any lawful use to which he might be minded to vput it. An easement is generally, and in general most naturally and properly, created by words of grant; but words of covenant may be equivalent to a grant if such be the clear intention: Gale and Whately, Easements, 32; Washburn Easements, 34; Holmes v. Sellars, 3 Lev. 305; Brewster v. Kitchell, 1 Salk. 198; Hills v. Miller, 3 Paige, 254; Watertown v Cowen, 4 Paige, 510; Barrow v. Richard, 8 Paige 351; American Notes to 1 Smith, L. C. 143. Domat, $1017, copying from the Institutes, says, that u services are most commonly settled by covenants.” Indeed, it is difficult to conceive how, otherwise than by covenants, a servitude consisting in an act to be done by the owner of the servient land, can be created: e. g. the payment of a rent, or, as in this case, a contribution to repairs: Blount v. Harvey, 6 Jon. 186, is not opposed to this principle. All that was there held was, that, considering the nature of the matter contracted for, the parties intended only a personal covenant, and not the grant of an easement.

In the case now before us, we think there can be no room for a doubt as to the intention of the parties. The rights and obligations which they created, were to be permanently attached to them respective lands; and to be of any value, they must be. Them purposes would be defeated by holding that the obligations rested only in personal covenant, and were subject to be practically extinguished by a sale, or the death of any of the parties.

It may be admitted, however, that the contract operated as a grant, and created mutual easements and servitudes; but this admission would not cover the whole ground, and would still leave it to be determined whether the contract to contribute to the repairs, was a part of the servitude capable of being enforced against an assignee. This is, in fact, the main question; for, although it were held that an upper proprietor .has, by the contract, the easement of drainage through the lower lands, and a lower one the right to enjoy that drainage, yet, if neither can be compelled to contribute rateably to the repairs of the canal, which must thus be left to depend on the casual and uncertain exigencies of each beneficiary, without any provision for an equitable adjustment of the burden between them, it must be manifest that the intentions of the parties, as well as the useful results of their agreement, will be mainly defeated.

With a bare reference to the authorities collected in the notes to Spencer’s case, 1 Smith L. C., it may be assumed, that in England a covenant like this, made by a lessee to a lessor, would run with the lands, and bind the assigns of the lessee; and, although we are not aware of any English case precisely deciding that, in case it were made by a grantee or owner in fee, it would not do so, yet the high authority of Mr. Smith, and of his American editors, and of other recent expressions of judicial opinion, is in that direction. If, however, instead of submitting implicitly to what seems the weight of opinion, we venture to inquire why such a covenant should be valid in the case of a lessee, and not in that of an owner in fee, we think it will be found either that the reasons have no weight, or are inapplicable to a case like this. In the first place, it is said that the covenant binds the assigns of a lessee, because there is a privity of estate between them and the lessor, who is the covenantee, and none in the other cases. But this, we submit, is not giving a reason for the difference, but only stating the rule in 'Other terms: That where there is a reversion, the covenant mil run, and where there is none, it will not. In Pennsylvania, (where it is said that the statute quia emptores, forbidding subinfeudation, has never been in force, and where consequently on every grant in fee there is a possibility of reverter by escheat,) on that ground covenants by owners in fee run with the land, as they do when by lessees: Am. notes to Spencer’s case, ubi sup. This shows that the reason for the rule which founds it on privity of estate, is arbitrary, and not a rule of reason, and may be dismissed as insuffi•cient.

In Mr. Smith’s note to Spencer’s case, 1 Smith L. C. 31 a. 35, 38, the rule is defended on the ground of the inconvenience which would result to the assignee, who might find himself liable for the execution of covenants of whose existence he was ignorant: and Lord Chancellor .Brougham, in Keppel v. Bailey, 2 Myl. and K. 517, (8 Cond. Eng. Ch. Rep. 111), while he refutes the idea that such a covenant is illegal because it tends to create a perpetuity, thinks that “great detriment would arise and much confusion of rights, if parties were allowed to invent new modes of holding and enjoying real property, and to impress upon their lands and tenements a peculiar character which should follow them into all hands, however remote. Every close, every messu-age, might thus be held in a several fashion, and it would hardly he possible to know what rights the acquisition of any parcel conferred, or what obligations it imposed. The right of way or of common is of a public, as well as of a simple nature, and no one who sees the premises can be ignorant of what all the vicinage knows. But if one man may bind his messuage and land to take lime from a particular kiln, another may bind his to take coals from a certain pit, while a third may load his property with farther obligations to employ one blacksmith’s forge, &c., &c.”

It must be admitted that there is some weight both in the reason of Mr. Smith, and in those of the Chancellor. Mr. Smith’s, however, has less weight in this State, where all deeds affecting real property are required to be registered, than in England. In this case, also, the nature of the covenant is such as almost to imply notice to an assignee of the lands: the easement is apparent and might not unfairly be held to put an assignee on inquiry as to the covenant which qualifies and regulates it. It is not easy to. see why both the objections are not as applicable to a covenant by a lessee, as by the owner of a fee. It is not anywhere said that the covenant of a lessee must necessarily be contained in the lease, and if it were in a separate instrument, it might be as much unknown to an assignee of the lease, as a covenant by an owner in fee might be to his assignee. In either case, .and equally in one as in the other, the benefit of the covenant could be released, and the land set free. The inconvenient conditions which the Lord Chancellor supposes might be attached to lands, all materially differ from this, in that they do not arise out of the land burdened, or qualify any apparent easements, but are collateral in their nature. In this casé the easements and servitudes created by the contract are of a character whose utility has long been recognized by the law. Eoads and Aqueducts are the two sorts of rural services mentioned in the Digest.

The Bevised Code, ch. 40, provides that the owners of upper lying lands may procure, through the Courts, the easement of drainage: it left, however, the whole burden of construction and repair on the upper proprietor. The act of 1868-’69 endeavors to remedy this omission, and provides how these burdens may be adjusted among the parties interested. The end sought to be attained by this contract, is in harmony with the policy of our legislation, and is necessary for the improvement of the level parts of the State. We think that the stipulation respecting repairs, is an essential part of the easement and servitude which the defendant acquired both as a benefit and a burden appurtenant to his lands, and which cannot be separated from it without injustice, and that therefore the covenant runs with the land and binds the defendant. The canal has been cut,* the defendant cannot, in the nature of things, release the benefits which he acquired; the land cannot be returned to its former condition, and the maxim applies qm sentit commodwm, débet sen-tire ¿dorms. This is illustrated by Rex v. Inhab. Kent, 13 East 220, where a corporation, which had been allowed to cut a canal across a highway, was held bound to' the repair of a bridge over it; and our legislation, by which owners of land cutting ditches through a highway, are bound to maintain bridges over them, is analogous: Rev. Code, ch. 101, s. 24.

It seems to me that these observations furnish an answer to the reasons alleged as preventing an owner in fee from subjecting his land to a burden of this sort. I also venture to differ from Mr. Smith as to the construction of the cases of Brewster v. Kitchell, 12 Mod. 166, Holmes v. Buckley, 1 Eq. Ab. 27, cited by him: to these may be added Barclay v. Raine, 1 S. and Stu. 449. These cases, it seems to me, support the argument for the plaintiffs in the present case, and "by properly distinguishing the sorts of servitudes, may be reconciled with the reasoning of the Chancellor in Keppel v. Hailey.

This decision is limited to cases in-principle like this: where the intent to create an easement is clear, where the •easement is apparent, and where the covenant is consistent with public policy, and so qualifies or regulates the mode of enjoying the easement, that if it be disregarded, the easement created will be substantially different from that intended. How it would be in a different case, we do not undertake to say.

Demurrer sustained. Judgment for defendant.

Per Curiam:. Judgment reversed.